Regardless of where we stand as Americans in relation to the war on terrorism, our world changed fundamentally on September 11, 2001. Age-old legal constructs were and continue to be tested as the nation assumes a war footing against an enemy larger than any one country. These debates all fall beneath the umbrella of the United States Constitution and the Bill of Rights.
The Bush Administration authorized the secret wiretapping of domestic phone calls to investigate terrorist threats shortly after the 9-11 attacks. The program's revelation prompted a series of legal challenges from citizens and Congress, alleging a violation of one's right to privacy implied by the Fourth Amendment and other selected amendments. Congress and the courts will likely have the final word, looking to the past and our original documents and applying them to our changing world.
In a related development, the First Amendment freedom of the press has come under intense scrutiny in light of revelations of White House programs like domestic wiretapping, the monitoring of international financial transactions, and secret CIA prisons in Eastern Europe. What are the limits on press freedom during times of war? Does the revelation of secret government programs jeopardize national security or embolden the populace to hold elected officials accountable for potential violations of civil liberties? Administration officials and select members of Congress have since rebuked these reporters and the newspapers who employ them, but shades of grey remain.
The United States Supreme Court concluded their recent term by issuing the Hamdan decision. A 5-4 majority deemed the Bush Administration's program of detaining enemy combatants at Guantanamo Bay with a plan to try them before military commissions lacking the range of protections extended to defendants in civilian courts a breach of the separation of powers doctrine defined in the Constitution in 1787. The President arguably usurped congressional authority in the area of war powers and due process of law.
This debate and others endure in changing times as Americans attempt in the words of the Constitution's Preamble to "secure the blessings of liberty to ourselves and our posterity. " Each generation is charged with the task of acknowledging, treasuring, and defending the Constitution, for freedom mandates responsibility, a fulfillment of the social contract signed on September 17th.
Our continuous consent to this contract requires us to travel to Philadelphia in the summer of 1787 and to immerse ourselves in the debates of the delegates over the structure of our national government that perseveres to this day. Fifty-five men from all of the original thirteen states but Rhode Island met from May 25th through September 17th to draft the United States Constitution, our second government charter after the failed Articles of Confederation. It was here that the framers struggled with the notion of a balance of power between three separate branches of government, the shared military authority between Congress and the President, and a Supreme Court that would interpret the meaning of this document across time.
September 17th is significant because it commemorates the day when thirty-nine men placed their names on the final document and sent it to Congress to facilitate the ratification process. Congress submitted the Constitution to the states eleven days later, and each called special conventions for the purpose of consenting to a social contract with "We the People." Delaware was the first state to climb aboard on December 7, 1787, and New Hampshire became the requisite ninth state to ratify on June 21, 1788. The consent of Virginia and New York, the nation's most populous states at the time, was deemed essential to legitimize the document, and a series of opinion-editorial pieces known as the Federalist Papers written under the pseudonym of Publius appeared in major dailies urging ratification. They succeeded by June 26, 1788, but heeded the calls of opponents in these states and others to add a bill of rights to the document as soon as the First Congress assumed office.
Virginia Congressman James Madison, credited as the architect of the Constitution and one of three authors of the Federalist Papers, embraced the task of drafting what became the Bill of Rights, proposing twelve amendments to the original document from the plethora of recommendations stemming from state ratifying conventions. The first two amendments were not ratified immediately, but the subsequent ten formed what we call the Bill of Rights, and were formally added to the Constitution on December 15, 1791.
The brilliance of this document and its recipient amendments is its flexibility across time, establishing formalized structures through which we can debate contemporary controversies, pass legislation and spur executive action, protect individual liberties, and modify its meaning to correct debilitating defects. Recent events have only cemented this notion.
